On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Cumberland County, Docket No. DC-6904-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Plaintiff Robert Triffin is in the business of purchasing dishonored negotiable instruments from check-cashing companies. Thereafter, as an assignee, he seeks to collect the face value of the dishonored check from the bank that deemed the check fraudulent and had consequently refused to debit the purported payor's checking account. He appeals from the grant of summary judgment to defendants Wachovia Bank, N.A. (Wachovia) and Professional Recovery Services (PRS). We agree with the motion judge's conclusion that Triffin is barred by the Court's decision in Triffin v. TD Banknorth, N.A. (Banknorth), 190 N.J. 326 (2007), from seeking recovery against Wachovia and PRS. We reject Triffin's claim that because his cause of action was equitable rather than statutory in nature, the Court's opinion in Triffin v TD Banknorth was distinguishable. We affirm.
On November 14, 2008, plaintiff executed an assignment agreement with Cumberland Check Cashing (Cumberland), in which Cumberland transferred to plaintiff all of its rights and interests in a check that had previously been dishonored by Wachovia. The check in question was payable to defendant Douglas Watford in the amount of $1,212.06 and was purportedly drawn on an account that PRS maintained at Wachovia. Wachovia returned the check to Cumberland, deeming the check counterfeit. Because Wachovia dishonored the check, it refused to transfer the $1,212.06 from PRS's account to Cumberland, thereby causing a loss to Cumberland in the amount of the dishonored check. For a reduced price, Cumberland assigned its rights against Wachovia and PRS to plaintiff.
On December 18, 2008, plaintiff filed a four-count complaint against PRS and Wachovia. In count one, he alleged that because Wachovia violated the "midnight deadline" of N.J.S.A. 12A:4-302*fn1 by waiting until after midnight of the day Cumberland presented Watford's check for payment, Wachovia had forfeited its right to dishonor the check. Plaintiff consequently maintained that by refusing to pay Cumberland the $1,212.06, Wachovia had engaged in "theft . . . of money through false pretenses" that "unjustly enriched" PRS "at the expense of [Cumberland], and now [plaintiff] as [Cumberland's] assignee." The first count concluded with a prayer for relief stating that "as a matter of equity, plaintiff . . . demands judgment against defendant[s] . . . in the amount of $1,212.06."
In count two, which named only Wachovia as a defendant, plaintiff alleged a violation of 12 C.F.R. 229.51 because the "photo in lieu" document that Wachovia returned to Cumberland did not bear the advice required by that regulation, namely "this is a legal copy of your check. You can use it the same way you would use the original check."
The third count named only Watford as a defendant, and alleged that Watford was liable to Cumberland and to plaintiff by reason of his unlawful action. Watford was never served, has never appeared in the action and has raised no claims on appeal.
The fourth count alleged a violation of the Consumer Fraud Act by Wachovia and Watford, for which plaintiff sought treble damages.
On February 20, 2009, two months after Triffin's complaint was filed, Wachovia moved for summary judgment. Wachovia argued that in Triffin v. TD Banknorth, supra, 190 N.J. at 328-29, a case involving this same plaintiff, the Court held that Triffin had no standing to seek recovery of the face amount of the check -- even if the bank had violated the midnight deadline rule -- because Triffin had purchased the check with full knowledge that the check had already been dishonored. The motion judge agreed with Wachovia's argument that Triffin v. TD Banknorth was dispositive and granted summary judgment to Wachovia.
PRS also moved for summary judgment, although on different grounds. PRS argued that plaintiff had not pled any of the elements of his unjust enrichment claim against PRS. The judge agreed, and granted summary ...